Lead Opinion
Oрinion by Judge RICHARD C. TALLMAN; Partial Concurrence and Partial Dissent by JUDGE MILAN D. SMITH, JR.
Defendant-Appellant Todd Johnson pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(1). On appeal Johnson argues (1) that the district court improperly denied his motion to suppress and (2) that the district court erred in declining to award him a one-level down•ward adjustment pursuant to § 3E.l.l(b) of the Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
On October 19, 2006, Alaska State Trooper Vic Aye and Deputy Troy Meeks of the United States Marshals Service were serving federal warrants on the east side of Anchorage. The officers were wearing plain clothes and driving an unmarked sports utility vehicle. While the officers were stopped at a traffic light across from the First National Bank, Deputy Meeks noticed three suspicious individuals standing in the bank’s parking lot next to a tan Buick sedan. The car was parked about 20 feet from the bank’s front entrance and its hood was raised. The three men — later identified as Johnson, David Brookins, and Alvin Nelson — were not looking under the hood but instead appeared to be surveying the bank and the surrounding area. As the officers drove away, Deputy Meeks observed Johnson and Nelson head toward the bank’s front door. Johnson, who was wearing a hooded sweatshirt under a jacket, flipped up his hood partially obscuring his face.
His suspicions aroused, Deputy Meeks described to Trooper Aye what he had just witnessed. The officers decided to double back for another look. By the time they circled back to the bank, the sedan’s hood had been closed, and Brookins was alone in the vehicle sitting in the driver’s seat. The other two men were nowhere to be seen. Trooper Aye decided to enter the bank while Deputy Meeks stayed outside to surveil Brookins.
Once inside the bank, Trooper Aye immediately noticed a teller nervously watching Johnson and Nelson, who were standing in line. The men were whispering to each other, and Johnson appeared to be surveying the bank lobby. Trooper Aye approached another bank employee who also appeared to be eyeing the men. He surreptitiously identified himself as a state trooper and asked the employee if everything was alright. She responded “no,” and also appeared nervous.
Although not in uniform, Trooper Aye could still be recognized as a law enforcement officer. He was carrying several pieces of police equipment including a sidearm, taser, and two-way radio and he was wearing a bulletproof vest underneath his outer clothing. At some point, Johnson looked directly at Trooper Aye, said something to Nelson, and immediately walked out of the bank. Deputy Meeks observed Johnson exit the bank and stand at the driver’s side of the sedan. Johnson appeared to gesture to Brookins before getting into the back seat. Trooper Aye and Deputy Meeks communicated by cellular phone as to what each had just witnessed. Trooper Aye then left the bank and rejoined Deputy Meeks in the police vehicle. The officers decided to stop and question the men. They pulled behind the sedan and activated their emergency lights.
The officers approached the car and displayed their badges. They verbally identified themselves as law enforcement officers and asked for identification. Trooper Aye told Johnson and Brookins that the whole incident “might be a misunderstanding” and that they “just want[ed] to talk with [them].” The men cooperated with the officers’ request that they step out of the car. Deputy Meeks patted down Brookins and discovered a loaded .25 caliber handgun in his front pocket and a spare magazine in his back pocket. Deputy Meeks informed Trooper Aye, who was talking to Johnson, that he had found a gun. The officers then conducted a pat-down search of Johnson and located another semi-automatic pistol in his coat pocket. The officers handcuffed Johnson and Brookins and seated them on the curb. Nelson then emerged from the bank and walked toward the sedan with his hands in his pockets.
The officers explained to the three suspects that the matter still could be a misunderstanding, but they needed to run their identifications to determine whether they had any active warrants or other criminal history. At that point, Johnson volunteered that he had a previous drug conviction in Florida.
On April 19, 2007, Johnson was indicted in the District of Alaska on a single count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(1). He was arrested soon thereafter in Miami, Florida, and transported to Anchorage where he was arraigned. Johnson initially pled not guilty. He filed a motion to suppress all evidence obtained as a result of the detention, including the pistol officers had found in his coat pocket. Johnson also notified the prosecution that he intended to plead guilty if his suppression motion was unsuccessful.
On October 1, 2007, a magistrate judge held an evidentiary hearing on the motion, at which both Deputy Meeks and Trooper Aye testified. After evaluating the evidence and witness testimony, the magistrate recommended denial of Johnson’s suppression motion, concluding that officers had reasonable suspicion that criminal activity might be afoot to detain Johnson for questioning and to conduct a patdown seаrch. On November 19, 2007, the district court, over Johnson’s objections, adopted the magistrate’s recommendation in full and denied Johnson’s motion to suppress. On November 27, 2007, Johnson formally entered a conditional guilty plea, which reserved his right to appeal the denial of his suppression motion.
At sentencing, the government did not oppose a two-level reduction to Johnson’s offense level for acceptance of responsibility under United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 3El.l(a), as recommended in the presentence investigation report. The government, however, declined to move for an additional one-level decrease under § 3El.l(b), citing Johnson’s decision to pursue the suppression issue on appeal. The district court, after considering the parties’ arguments, rejected Johnson’s argument that he should nonetheless be awarded the third-level adjustment because he timely pled guilty and thus permitted the government to avoid preparing for a trial. The court then sentenced Johnson to thirty months incarceration followed by three years of supervised release. This appeal followed.
II
Johnson first appeals the district court’s denial of his suppression motion, which we review de novo. See United States v. Bautista,
“The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” United States v. Enslin,
“Reasonable suspicion ‘is formed by specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.’ ” United States v. Thompson,
We first dispose of Johnson’s contention that his initial seizure amounted to an arrest and therefore required probable cause from the outset. He argues that he was under arrest from the moment officers activated their emergency lights, pulled their vehicle behind the parked sedan, and approached the car. Based on our review of the record, we disagree.
After finding weapons, the officers were justified in handcuffing Johnson and Brookins as they waited for the third suspect to emerge from the bank. See United States v. Bravo,
The investigatory stop and frisk was supported by reasonable suspicion on facts quite similar to those in Terry itself, where an alert detective suspected three men of casing a business for a possible robbery. The specific, articulable facts known to Deputy Meeks and Trooper Aye were more than sufficient to support their suspicion that Johnson and his associates were casing a bank for a potential rоbbery and not merely experiencing car trouble. When two of the individuals entered the bank, one flipped up the hood on his hooded sweatshirt, which could aid in concealing his identity. The third man remained outside, lowered the hood of the car, and sat in the driver’s seat. The two men inside the bank were seen whispering to one another while one appeared to surveil the lobby area. A visibly nervous bank employee told Trooper Aye that something was amiss in the bank. When one of the suspects became aware of Trooper Aye’s presence, he whispered something to his associate, left the bank, and returned to the sedan waiting outside. A trained law enforcement officer could reasonably suspect that these individuals might well be intending to rob the bank and flee in the waiting getaway car.
Given the nature of the suspected criminal activity, the officers were also justified in patting down Johnson. As Deputy Meeks testified, in his experience, “[a]l-most everybody has weapons” in Alaska. But here the officers suspected that a bank robbery was about to take place, which increased their suspicion that the men might be armed. Mоreover, the suspects outnumbered the officers by three to two. Trooper Aye and Deputy Meeks were therefore justified, for their own safety, in conducting a patdown frisk of Brookins and Johnson to check for weapons. This is especially true in Johnson’s case. After Deputy Meeks first discovered a loaded pistol and an extra ammunition clip in Brookins’s possession, the officers had an even greater basis to suspect that Johnson might likewise be armed and that another patdown frisk was warranted for officer safety.
We are unmoved by Johnson’s efforts to provide innocent explanations for the conduct both outside and inside the bank. Whether this incident was indeed a foiled bank robbery attempt or a simple misunderstanding is not material to his suppression motion or this appeal. Applying a “totality of the circumstances” review of the facts then known to them, the officers possessed substantial information supporting a reasonable suspicion that criminal activity was afoot and that weapons might be involved. The investigatory stop and frisk of Johnson and the discovery of his semi-automatic handgun did not violate his Fourth Amendment rights. The distriсt court properly denied his motion to suppress the evidence.
Ill
Under the Guidelines, a defendant who “clearly demonstrates acceptance
The Guidelines provide for, but do not mandate, an additional one-level reduction upon a motion by the government. Subsection (b) of § 3E1.1 states:
If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or proseсution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
U.S.S.G. § 3E1.1(b). As we have said, “the government’s discretion to file a motion under section 3E1.1(b) is ‘a power, not a duty.’ ” Espinoza-Cano,
This discretion, however, is not limitless. Like many of our sister circuits, we have held that “a prosecutor is afforded the same discretion to file an acceptance of responsibility motion for a third-level reduction under section 3El.l(b) as that afforded for the filing of a substantial assistance motion under section 5K1.1.” Espinoza-Cano,
In United States v. Espinoza-Cano, our circuit’s seminal case relating to the government’s discretion under § 3El.l(b), the defendant contended that he was entitled to the extra acceptance of responsibility reduction, despite the absence of a motion by the government, because he had stipulated to all the facts necessary to establish his guilt, thereby assisting in a manner that allowed the government to avoid preparing for trial.
Even if we were to equate a stipulated bench trial with an outright guilty plea, the government still would not have been compelled to file the motion. There are rational reasons for the government to prefer an outright guilty plea to a stipulated bench trial. In particular, as the government urges, a plea of guilty allows the government to avoid expending resources “anticipating, and ultimately defending, a complete appeal.” As noted in Wade, “[t]he Government’s decision not to move may[be]*1003 based ... simply on its rational assessment of the cost and benefit that would flow from moving.”
Id. (quoting Wade v. United States,
While the particular facts of EspinozaCano are admittedly distinguishable from the conditional guilty plea in the instant case, the broad scope of the government’s discretion was established. Indeed, we applied Espinoza-Cano and reached the same conclusion in United States v. Medina-Beltran a case strikingly similar to ours. The defendant, having pled guilty to illegal reentry following deportation, appealed the district court’s refusal to grant him the third reduction point under § 3E1.1(b). Medina-Beltran,
Although Medina-Beltran pled guilty and avoided a trial on the substantive offense, he objected to his sentencing enhancement and rejected the government’s proposed appeal waiver. The government anticipated and defended his appeal of his sentence. Under these circumstances, the government’s decision not to move for the additional level reduction was not arbitrary.
Id.
Likewise, we conclude that the government here has presented an adequate reason for declining to file the discretionary motion — a reason that cannot fаirly be characterized as arbitrary or based on an unconstitutional motive. Johnson’s guilty plea was conditional, and he made clear that he intended to continue to pursue a favorable suppression order on appeal. If successful, the basis for the federal charge would dissolve. As the government maintains, Johnson “has not ‘accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner.’ ” United States v. Newson,
We once again find support for our holding in our sister circuits, which have confronted similar challenges to the government’s broad discretion under § 3El.l(b). See, e.g., Espinoza-Cano,
The Fifth Circuit has similarly addressed the issue before us, rejecting virtually identical arguments by the defendant. In United States v. Newson, the case upon which we relied in Medina-Beltran, the defendant timely pled guilty to a drug possession charge.
Johnson’s argument on appeal focuses almost exclusively on the timeliness of the
Before April 2003, the decisiоn to award the third-level reduction for acceptance of responsibility was non-discretionary and lay in the hands of the district court — a “factual determination reviewed for clear error.” United States v. Blanco-Gallegos,
If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps:
(1) timely providing complete information to the government concerning his own involvement in the offense; or
(2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently,
decrease the offense level by 1 additional level.
U.S.S.G. § 3El.l(b) (2002). Thus, when we decided Vance, a defendant was entitled to “a third level reduction either for providing information to the government regarding his own involvement or by timely notifying the government of his intent to plead guilty.” Espinoza-Cano,
The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub.L. No. 108-21, § 401(g), 117 Stat. 650, 671-72 (2003), materially altered § 3El.l(b).
We acknowledge that the government’s broad discretion to move for the third-level reduction under § 3El.l(b) might in some eases place defendants in a dilemma. See Blanco,
IV
The officers had reasonable suspicion to conduct an investigatory stop and frisk of Johnson, and, as a result, the district court did not err in denying his motion to suppress. The district court also properly declined Johnson’s request for the discretionary one-level adjustment for acceptance of responsibility under § 3El.l(b).
AFFIRMED.
Notes
. In August 2006, Johnson was convicted in Broward County, Florida, оf delivery of cocaine, a second degree felony. The record before us is unclear, however, whether Johnson disclosed to the officers that the prior conviction was a felony conviction.
. We conclude that the factual findings made by the district court are not clearly erroneous. The findings are well supported by the evidence presented at the suppression hearing, including the testimony of Trooper Aye and Deputy Meeks, which the district court obviously found credible.
. The government does not dispute that Johnson's detention ultimately escalated into an arrest. See United States v. Robertson,
. Although merely advisory after United States v. Booker,
. The panel unanimously reaches the same result, and all judges agree that the government here presented a legitimate reason for declining to move for the discretionary § 3E 1.1(b) point reduction. However, Judge Smith, in his concurring opinion, advocates for a distinct two-part inquiry that no circuit, including ours, has ever employed or even suggested. There is good reason for this universal conclusion. Most significantly, it defies the plain text of the Guidelines provision, which conditions the sentencing court’s authority to decrease by one additional level for acceptance of responsibility "upon motion of the government.” U.S.S.G. § 3El.l(b). Thus, when a defendant such as Johnson challenges the government's refusal to file such a motion, the only inquiry that courts engage in is whether that refusal was improp
Further, separating the legal question into separate parts makes little sense from a practical standpoint. For instance, if Johnson did not plead guilty in a manner described in § 3El.l(b), that would serve as a legitimate, non-arbitrary reason for the government to withhold the motion. Under our colleague's interpretation, Johnson would not be ''eligible” for the discretionary reduction in the first instance (and presumably the government need not present an explanation at all). The result is the same. Rather than ruminate further on what arguably amounts to semantics, we merely note that the purpose of the 2003 amendments to § 3El.l(b), discussed infra, was to assign control of the availability of the additional reduction point to the prosecution. In the Commission's view, the government is in the best position to evaluate whether the defendant has acted in a way that clearly demonstrates acceptance of responsibility for his offense, and whether he did so in a fashion that saved the government and the court resources in the particular case. Despite innumerable opportunities, no circuit court has sought to bifurcate the analysis in the manner our colleague does. We see no reason to depart from the wisdom of our predecessors.
. The concurrence curiously denounces both Espinoza-Cano and Medina-Beltran as "largely inapposite.” We respectfully but strongly disagree with our colleague's reasoning. The concurrence, for example, insists that "we can only speculate” about the circumstances of Medina-Beltran, where we upheld the government's decision not to move for a § 3E1.1 (b) reduction because the government was forced to "anticipate[ ] and defend[] [Medina-Beltran’s] appeal.”
. We merely note the nature of Johnson’s appeal because it is relevant to his degree of acceptance of responsibility, which is the essence of § 3E1.1. We do not imply that Johnson might have had a more compelling argument had he only sought to preserve his right to appeal issues pertaining to the sentencing determination.
. The concurrence cites other non-circuit cases such as United States v. Anzalone,
We further rejеct the concurrence’s "parade of horribles” as entirely irrelevant to Johnson’s case. This line of reasoning, which presents scenarios that bear no resemblance to the facts presented, is merely a strawman. In reviewing the government's refusal to file a § 3El.l(b) motion, we have described the analysis to be whether the decision was "rationally related to any legitimate governmental purpose.” Espinoza-Cano,
. Our colleague contends that "Vance interpreted language substantially identical to that at issue here.” But, by all accounts, the 2003 PROTECT Act marked a major change in the analysis of a defendant’s entitlement to the third-level § 3E1.1 (b) decrease. See, e.g., Sainz-Preciado,
. In Vance, we held that the defendant’s filing of a suppression motion could not serve as a bar to receiving the third reduction point where the defendant timely notified the prosecution of his intent to plead guilty.
. Johnson also argues that the government's refusal was arbitrary because it has not taken the same position in other criminal cases involving conditional pleas within the District of Alaska. This argument lacks merit. To not be "arbitrary,” the government need only demonstrate that its decision was rationally related to a legitimate end. Espinoza-Cano,
. We further point out that "it is well settled that there is no constitutional right to an appeal.” Abney v. United States,
Concurrence Opinion
dissenting in part, but concurring in the judgment:
I agree that the district court correctly denied Johnson’s suppression motion, and ultimately, that the district court did not abuse its discretion in declining to award Johnson a third-level adjustment for acceptance of responsibility. However, I write separаtely because I believe that my colleagues in the majority — by misreading the language of § 3El.l(b), by misjudging the continuing validity of our controlling precedent in United States v. Vance, 62 F.3d 1152 (9th Cir.1995), and by relying too heavily on largely inapposite case law — unreasonably expand the scope of the government’s discretion under United States Sentencing Guidelines § 3El.l(b). In so doing, the majority risks giving federal prosecutors undue license to penalize defendants for forcing the government to expend resources, even if the government’s justification for doing so is entirely unrelated to the stated objectives of the Sentencing Guidelines.
I believe that the majority unnecessarily conflates what, in my view, should be two distinct inquiries: (1) the substantive prerequisites for a third-level adjustment under § 3El.l(b); and (2) the scope of government discretion under § 3El.l(b). Specifically, I would first determine the meaning of § 3E 1.1(b) and whether the defendant became eligible for the adjustment by fulfilling the substantive requirements of § 3El.l(b). Then, I would gauge whether the government’s denial of the adjustment was rationally related to the identified legitimate government interest.
Using the approach described above, I conclude — contrary to the majority’s effective holding — that the government’s discretion over its basis for denying an adjustment under § 3El.l(b), while broad, must nonetheless be closely tied to the plain language of the guideline.
1. The Meaning of Sentencing Guideline § 3El.l(b)
A. The Guideline’s Language
We first consider the language of § 3El.l(b) and whether Johnson fulfilled his obligations under that section to become eligible for the adjustment. As the majority notes, § 3El.l(b) states in relevant part that the government’s motion should be based on its assertion that the defendant
assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.
(Emphases added.) While the trial preparation phrase and the resource allocation phrase are stated in the conjunctive, the term “thereby” applies to both phrases.
The word “thereby” is defined as “by that means.”
• “permitting the government to avoid preparing for trial” by the means of “timely notifying authorities of his intention to enter a plea of guilty” and
• “permitting the government and the court to allocate their resources efficiently” by the means of “timely notifying authorities of his intention to enter a plea of guilty.”
In this case, Johnson did both, which is why he was eligible for the third-level adjustment: the government conceded in its sentencing memorandum that Johnson had “entered a plea of guilty in a timely manner, admitted possession of a firearm as a felon, and saved the government the burden and expense of trial.” In addition, the district court stated on the record: “I don’t think there’s any dispute in the record [that Johnson’s plea was timely and
Though the majority does not fully explain its reasoning, its analysis implies that § 3El.l(b) should be read so as to render a defendant ineligible for the adjustment where he either goes to trial or causes the government to expend resources.
Moreover, such a reading could produce absurd results; it could allow the government to cite any defendant-caused government resource expenditure whatsoever, no matter how unrelated to the guilty plea. My concerns are not merely hypothetical; in previous instances, the government or court has based denials of an adjustment under various Guidelines on, for example: the defendant’s having filed a civil lawsuit against the government, United States v. Wilson,
B. Section 3El.l(b) as Interpreted in This Circuit
This semantic exercise is unnecessary, however, because we previously interpreted § 3El.l(b)’s substantive basis for the third-level adjustment in Vance,
The majority insists that Vance is no longer applicable in light of the PROTECT Act, because that Act materially changed some of the language of § 3El.l(b). I disagree. For purposes of this case, Vance interpreted language substantially identical to that at issue here. See United States v. Espinoza-Cano,
(b) If the defendant qualifies for a decreasе under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following his-own.....involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate its their resources efficiently, decrease the offense level by 1 additional level.
Thus, the PROTECT Act amended § 3E1.1, but only by: (1) changing who initiates the adjustment and giving that decision deference; (2) removing the defendant’s provision of information as a basis for receiving the adjustment; and (3) adding the consideration of government resources in preparing for trial. See id. The substantive basis for the decision to award the adjustment for a timely guilty plea remains essentially the same: the defendant is eligible for the adjustment, provided he “timely notified] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial” and thus “permitting [the government and] the court to allocate [their] resources efficiently.” U.S.S.G. § 3El.l(b) (bracketed portions denoting PROTECT Act changes). I am not persuaded that Congress — in amending the guideline, but leaving unchanged the “timely ... plea of guilty” and “preparing for trial” language' — intended the amended guideline to allow consideration of conduct unrelated to guilty pleas, such as appeals or motions to suppress (the latter, a basis specifically rejected in Vance and Price as a valid reason for denying the third-level adjustment). If Congress intended that interpretation, it could easily have included such language or removed the references to “timely ... plea of guilty” and “preparing for trial.”
As stated, Vance’s holding on this issue is clear: the only “resources” that may be considered in gauging the defendant’s satisfactiоn of the guideline are those resources devoted to trial preparation.
II. Arbitrariness
For the reasons noted, Johnson’s plea satisfied the pertinent plain terms of § 3El.l(b), and he was therefore eligible for a third-level adjustment. Under the pre-2003 Sentencing Guidelines scheme, this determination would have ended our inquiry, and Johnson would have been entitled to the downward adjustment. Cf. United States v. Blanco-Gallegos,
In this case, the government conceded, and the district court agreed, that Johnson had timely pled guilty and saved the government the expense of trial preparation. Thus, the only remaining question is whether the government abused its discretion by denying Johnson the adjustment. On this issue, I agree with the majority that, post PROTECT Act, the government enjoys discretion in moving for the third-level adjustment under § 3El.l(b). I disagree with the majority as to the scope of that discretion.
While we have not yet clearly resolved this issue, cf. United States v. Medina-Beltran,
The majority finds support for its conclusion in the preceding cases, as well as in two largely inapposite
While I am not entirely persuaded by the Eighth Circuit’s approach, I am also uncomfortable with the majority’s approach in this case. Though the majority purports to limit its holding to whether the government is required to expend resources on appeals, I believe that, by condoning the adjustment denial based on the “legitimate government end” of “efficient resource allocation,” Maj. Op. at 1004 (citing Blanco,
Nonetheless, having considered the relevant authority and policy implications, I reluctantly conclude that, in this case, the government’s denial of a third-level adjustment was not arbitrary. Although Johnson’s plea permitted the government to husband its resources at the trial level, Johnson’s unwillingness to waive his appeal rights showed that he had not “accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner,” TJ.S.S.G. § 3E1.1 cmt. background. Importantly, though his conditional guilty plea was technically a notice of his “intention to enter a plea of guilty” under the letter of the Guidelines, it did not fulfill the spirit of § 3El.l(b), as the conditional plea was arguably not a true “guilty” plea as contemplated by § 3El.l(b). I may have concluded differently were I reviewing the issue under the pre-PROTECT Act regime. But under our current standard, I believe that the government’s basis for its denial was sufficiently tethered to the Guidelines to render that basis rationally related to a legitimate government interest and nonarbitrary. As a result, I concur in the judgment.
. I note that at the heart of this case is the inherent difficulty of applying rational basis review to government motions for sentencing range adjustments under the Guidelines. In other fields employing rational basis review, specifically due process and equal protection law, a court judges the legitimacy of the government’s conduct by that court’s own notion of what constitutes a legitimate governmental objective. See Allied Stores of Ohio, Inc. v. Bowers,
. The majority criticizes this approach, implying that we must undertake the § 3El. 1(b) analysis by determining the arbitrariness of the government's application of the guideline without determining what that guideline means. To me, this is illogical.
. The resource allocation phrase cannot be read as a conjunction with the timely notification phrase because, were the former intended as such, one would expect the word "by” to proceed "permitting the government and the court,” as it does with "timely notifying.”
. Webster's Third New International Dictionary 2372 (2002) (emphasis added).
. The majority does suggest that the term "prosecution,” U.S.S.G. § 3El.l(b), encompasses "the entirety of the criminal proceedings in a particular case until judgment is final and certain.” Maj. Op. at 1002. This reading, however, is foreclosed by Vance,
. The majority labels these examples a "parade of horribles” and dismisses them as irrelevant to this case. Maj. Op. at 1005 n. 8. But they are quite relevant; they demonstrate the potential Guidelines flouting that occurs where courts, like the majority here, allow the government to ignore the plain language of the Guidelines in declining to move for sentencing adjustments.
. Section 3E1.1(b)(2) is part of the predecessor to the current Acceptance of Responsibility Guideline. As shown below, though it is formatted slightly differently, it is substantively similar for the purposes of this case.
. The majority suggests that this approach renders the changes created by the PROTECT Act "superfluous.” Maj. Op. at 1005-06 n. 9 (citing United States v. Beatty,
. In Medina-Beltran, the court determined that, "[u]nder these circumstances,” the government's decision not to move for a § 3El. 1(b) reduction was not arbitrary. Id. at 731. In so concluding, however, the Medina-Beltran panel provided no analysis and cited only an out-of-circuit decision as authority. Id. (citing Newson,
. Espinoza-Cano is also largely inapposite. Unlike Johnson, Espinoza-Cano did not "timely notify[ ] authorities of his intention to enter a plea of guilty,” U.S.S.G. § 3El.l(b); indeed, he never pled guilty at all.
. As the majority notes, the government’s discretion under § 5K1.1 is the same as under § 3El.l(b). See Espinoza-Cano,
. See notes 9 and 10.